Pelosi, McConnell and Impeachment

President Donald Trump meets with, from left, Senate Majority Leader Mitch McConnell, R-Ky., Senate Minority Leader Chuck Schumer, D-N.Y., and House Minority Leader Nancy Pelosi, D-Calif., and other Congressional leaders in the Oval Office of the White House, Wednesday, Sept. 6, 2017, in Washington. (AP Photo/Evan Vucci)

Harvard cretin and law professor Laurence Tribe threw Nancy Pelosi a lifeline after the House voted to approve two articles of impeachment against President Trump.  Questions have since arisen as to whether an actual impeachment have occurred.  The Constitution says nothing about what happens after House votes to impeach an officer of the United States.  There is no requirement that the House take any action whatsoever after the articles are approved by the full House.  We do know that under the rules for impeachment adopted by the Senate in 1986 that the Senate itself cannot take any action until the House appoints floor managers and presents the articles to the Senate.

In effect, Nancy Pelosi and the Democrats are left with an unofficial censure of Trump based on a partisan vote. The Democrat leadership also erroneously believes they have placed a dark cloud over Trump, a belief not evident in polling.  Pelosi is using the excuse that she needs to see the rules of a Senate trial first before she acts.  Since lines have been drawn and there appears to be an impasse between the two chambers of Congress, it becomes obvious that impeachment is simply a political ploy by Nancy and her Democrat cohorts.

In theory, she could hold back the articles until after the election in 2020.  That would be premised on the belief Trump wins reelection and what better way to start off a second term than with an impeachment trial?  She could also be wishing that Democrats capture the Senate in 2020 if Trump wins the White House where she would then get her way.  However, if Trump loses, the articles get placed in the dumpster.

Realistically, the question arises as to whether the House is obligated to transmit the articles of impeachment to the Senate?  The answer is in the negative, just as McConnell was under no obligation to consider the nomination of Merrick Garland for the Supreme Court.

Those 1986 rules state: (1) the process begins when the House is ready to proceed with floor managers, (2) inform the floor managers that the Senate is ready to proceed, and (3) hold a trial.  Under these currently in-effect rules, the Senate cannot proceed with a trial until the House approves floor managers and sends the article of impeachment to the Senate.

McConnell could theoretically decide that a trial can proceed without floor managers or presentation of the articles.  This would set up a Constitutional battle between the House and Senate with the House saying “not impeached” and the Senate saying “impeached.”  Those 1986 rules flow from Article I, Section 2 which gives the House the “sole power of impeachment.”  This implies that it is the House that gets to decide when impeachment exists.

In such a case, the Senate can argue with equal vigor that the rules are mere formalities without any constitutional significance.  In fact, there are no constitutional requirements that floor managers be appointed and that they or anyone else has to present articles to the Senate.  That is because Article, Section 3 states that the “Senate have the sole power to try all impeachments.”  However, the precursor to that trial is an act of impeachment and the House gets to define when an impeachment occurs.

But, McConnell is not impotent here and beholden to the wishes of Pelosi.  He can change the rules without even getting to the constitutionality and definition of when an impeachment exists.  A perfect example is to be found in the Rules of Criminal Procedure.  In those cases, a court can dismiss charges if the prosecution (the House) fails to charge, indict, or bring a defendant to trial in a timely manner.  In the case of the impeachment of the President, McConnell can choose any time such as 30 days or 45 days.  If the House fails to make a case, then the Senate, in effect, acquits the President without even the show of a trial.

McConnell can make a valid claim that holding their mythical dark cloud over the President for an indeterminate amount of time by the Democrats does the country and President a disservice.  In such a case, the House, Pelosi and the Democrats pay the price for failing to present the articles in a reasonable amount of time.

The more Pelosi delays, the more she undercuts her very argument for impeachment in the first place.  The urgency in removing the duly elected President of the United States becomes less urgent as time passes.  If it was so important in December, 2019, then they should not be playing around relying on a lifeline from Laurence Tribe.  One would think that Pelosi is politically adept enough to realize that.

If she has a shred of intelligence in her head, this could be decided tomorrow.  Instead, it may just take some political hardball from McConnell to force Pelosi’s twitching hand.